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Judging the jury: Why rape trials can still be in safe hands : [LAWGAZETTE.CO.UK]

11. Dec 2018

There is only one job you can get today without asking for it. One you can be given whether you like it or not. Whether you want it or not.
A letter requesting an adult serve as a juror in England and Wales is not a polite invitation. It is not a suggestion nor an enquiry. It is a summons. And, if you receive one, it will become your temporary job unless you fall within narrow exceptions. Unlike in the USA, there is no selection process. The parties in a criminal trial get what they are given. Or, more accurately, who they are given.
Juries are snapshots of society. They are invariably age and gender diverse. They will reflect the racial composition of the community. Twelve is a sufficient number to allow for checks, balances and wide-ranging opinion. No one has, yet, come up with a system said to be fairer than a pick-and-mix sample of the public.
It has recently been argued, however, that verdicts in rape trials should be taken out of the hands of 12 amateurs and placed into the hands of one professional judge. A watered-down version proposes a panel, a professional mini-jury of sorts. The suggestion that verdicts be professionalised is rooted in the idea that rape convictions are falling short.
By what scale do we measure ‘good’ and ‘bad’ conviction rates? How do we judge the jury? It is tricky territory to navigate.
The hard truth is that resolving rape allegations will be difficult for the decision-maker, whoever they are. If those difficulties were legal in nature, then appointing a professional judge or panel might ‘correct’ the problem. But the difficulties in rape trials are often not legal at all. They are human. What went on, often in private, between two individuals requires a human assessment of the deepest kind. Those assessments are strengthened by diversity and fortified by numbers.
Against that difficult background enter rape myths. Those arguing for the removal of juries suggest jurors may be inclined to adopt outdated preconceptions and biases. A recent survey of the public has revealed disturbing beliefs about both rape and consent.
Rape myths are ugly distortions of human behaviour and the law. The fictitious belief that rapists are towering men lurking in alleys waiting to pounce. The offensive presumption that complainants are always female and offenders are always male. The brutal, broken thinking that if parties have had consensual intercourse before, then it must be consensual again. The dinosaur logic that someone on a dating app must be searching for sex.
[Read the full article in the Lawgazette.co.uk click here]

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